*1 1986). Where the modification is detrimental employee, may it applied not be absent employee’s express acceptance of the
modification because it interferes with the Yeazell,
employee’s
rights.
contractual
Ariz. at
employee and part it became of the contract. death,
At Judge Thurston’s his contract provided surviving that his spouse was enti-
tled to equaling benefits two-thirds of his
monthly benefits. Because Mrs. Thurston
qualifies Judge surviving Thurston’s spouse, she is entitled to receive those bene- fits.
DISPOSITION The trial correctly granted court Mrs. Thurston’s summary motion for judgment. Accordingly, we affirm judgment
trial court and opinion vacate the of the court appeals.
FELDMAN, C.J., CORCORAN, MARTONE, JJ., ZLAKET and concur.
State Bar of John Adair SHANNON, Jr., Respondent. SB-92-0001-D,
No. 88-1932, Disc. Comm. Nos. 89-0710. Supreme Arizona, Court of
In Division. June Reconsideration Denied Oct.
54 *3 by Margaret D. of Arizona
State Bar White, Phoenix, Counsel, for State Bar Sr. Bar of AZ. Robert P.C. W. Kenney,
Browder & Browder, Phoenix, respondent Shannon.
OPINION
CORCORAN, Justice. Bar of February the State
On complaint a Hear- filed a formal Arizona (Committee) charging Re- ing Committee *4 Shánnon, with two Jr. spondent John Adair Respon- conduct which counts of unethical ethical allegedly violated numerous dent 42, Arizona Rules of rules enumerated in rule vote, By a 2-1 Supreme Court. recommended that Committee practice of law for a suspended from the year. The 8-member Disci- period of one (Commission) unani- plinary Commission mously recommen- adopted the Committee’s further recommended Re- dation and make the amount spondent restitution $2,258.60.1 appeal cross-appeal a This is an order filed Oc- Disciplinary Commission’s urges The State Bar tober argues additional violations and court to find disbarment, rather than the recom- one-year suspension, appropri- mended is the Respondent’s violations. Re- ate sanction challenges the Commission’s find- spondent sanctions, ings, and the the recommended Respon- expenses. imposition of costs and (1) argues evidence basically that: dent a sustain find- presented is sufficient rule; (2) ing any ethical that he violated one-year inappropriate both suspension is an (3) sanction; some of disproportionate duplica- against him are charges assessed (4) tive; power to this court lacks the expenditures. types of assess certain 53(e), Ari- jurisdiction pursuant rule have Supreme zona Court. Rules AND PROCEDURAL FACTUAL HISTORY One, serious of two the more Count joint counts, Respondent’s repre- out arose case, represents figure their 1. This the amount that paid over dent's clients who took co-defendants, judgment. allegations,
sentatíon of Fairfield Re- Sunrise Based these (Fairfield) Village violating and Client A.2 Count spondent charged One ERs with (1) 1.15, 1.2(d), 8.4(d). alleged 3.2, that: Fairfield’s interests hearing were After a interests, adverse to Client A’s and alterna- before the Committee and a review Commission, tively Respondent’s representation of concluded that the Commission A may Client materially have been limited 3.2. Respondent violated ER 1.15 and Fairfield, responsibilities to parties, third (2) A. Violations own interests: materially altered certain Client A’s hand- Respondent challenges both the Commis- interrogatories written answers without findings sion’s sanc- its recommended consulting A providing Client and without argues tions. He that there was insufficient copy Client A interroga- of the altered finding support evidence that he violated (3) tories; submitted altered ethical rule. further interrogatories, along with the verification that, assuming even he violated ethical signed that Client A original for their hand- rule, inap- the recommended sanctions are support written answers to the court in of a propriate because the Committee Com- (4) summary judgment; motion for Re- inappropriately his failure mission considered spondent adequately failed to communicate “directly acknowledge wrongful nature *5 respond
with Client A or to
to reasonable
aggravating
of his conduct” as an
factor.
requests
during
represen-
information
Moreover,
the rec-
tation
Client A.
allega-
Based
these
ommended sanction does not take into ac-
tions, Respondent
charged
violating
with
voluntary
practice
count his
cessation of the
1.2(a)
(ER)
1.7,
(d), 1.4,
Ethical Rules
disproportionate
of law and is
to the sanc-
3.3(a)(1)
3.4(a)
3.1,
(4),
(b), 4.1(a),
imposed
tions
in similar cases.
8.4(c)
(d)
42,
of rule
Arizona Rules of
Supreme
hearing,
Court. After a
1.
Standard
Review
Committee concluded that
violat-
matters,
disciplinary
this court
1.4(a), 1.4(b), 1.7(a),
ed ERs
Despite
and 3.3.
acts
an
independent
as
arbiter
both
having adopted the Committee’s factual find-
Neville,
facts and the
In re
147 Ariz.
law.
ings, the Commission concluded
Respon-
(1985).
106, 108,
1297,
708 P.2d
1299
1.4(a), 1.4(b), 1.7(b), 3.3,
dent
ERs
violated
facts,
acting
give
as
we
an arbiter of the
8.4(d).
8.4(c), and
deference and serious consideration to the
Count Two arose
rep-
findings
out
of both the Committee and Commis
518,
516,
resentation
in
personal injury
of Client B a
sion. In re
159 Ariz.
768
Pappas,
1161,
(1988),
Neville,
judg-
citing
matter which
obtained a
147
P.2d
1163
108,
complaint alleged
ment. The
Ariz. at
satisfaction of
oppos- P.2d
see also rule
ing
subsequent requests
sign
Supreme
counsel’s
Simi
the Arizona Rules of
Court.
law,
forcing opposing
larly,
acting
satisfaction
to file
we
counsel
arbiter
(3)
compel;
give
motion to
great weight
and waited another full
to the recommendations of
after
granted
week
the court
the motion to
the Committee and the Commission. In re
Lincoln,
233, 235-36,
371,
compel
signing
before
satisfaction of
Ariz.
recognize
2. We
who
Mr. and
A were
Fair-
clients
seek counsel
Mrs.
co-defendants with
lawyers
often
do so
confidence. We
underlying litigation.
purposes
field
For
believe that such confidences should not be
readability
will
describe Mr. and Mrs. A
merely
lawyer
breached
because the
involved is
together
singularly
or
either
as "Client A.”
subject
disciplinary procedure.
of a
their,
using pronouns,
they,
When
his,
we will use
therefore use Client A and Client B instead of the
applicable.
her as
clients’ actual names.
Neville,
(1990),
could neither
citing
ployees
representatives
147 Ariz. at
or sales
373-74
Yet,
program
any
priority-rent-back
2. Count One pri- about representations A made Client testimony The Committee belief led ority-rent-back heard concern- This program. ing Findings A Count One and of Fact and Client made its between Fairfield the contract report provide in its filed Com- rent- June in which Client A contracted mission, arguments pur- hearing management parties after on this who al services count, adopted Findings Client Committee’s from Fairfield. chased condominiums record, reviewing Fact. After this court effective from A’s contract with Fairfield was adopts Findings likewise the Committee’s 1983. Be- 1982 to October November Fact, are against summarized below. Fair- Decree cause Consent field, that Client to Fairfield important it was 1986, attorney In December Gerald W. entity separate viewed as a operations A’s Nabours sued Fairfield and Client A on be- acting A on their own without with Client plaintiffs purchased of multiple half had who knowledge or consent. Fairfield’s The complaint condominiums from Fairfield. alleged that Fairfield its breached contract position on this matter was con- Fairfield’s plaintiffs had On committed fraud. very beginning. from the Nabours sistent counts, these the complaint sought two re- been in contact with testified that he had scission, compensatory damages, puni- filing Fairfield before representatives of damages. alleged tive The complaint also testified that Fairfield complaint. He *6 (defendants) that both Fairfield A and Client it position be that had taking seemed to violated Arizona’s RICO statutes. For this representations pur- to prospective made no count, complaint sought damages, treble concerning pro- priority-rent-back chasers a costs, attorneys’ and fees. gram, any representations and that were complaint The essence of the was that others, specifically A or their made Client priority-rent-back pro- defendants used a representatives. gram plaintiffs purchase to induce to January Fairfield retained Re- arbitrarily condominiums and then discontin- to it in the lawsuit. spondent’s brother defend the program. ued claimed that Plaintiffs thereafter, Shortly Respondent pri- assumed represented plaintiffs’ defendants that condo- litigation. mary responsibility for the Re- priority-rent- miniums be in a would included spondent filed Fairfield’s answer. Fairfield’s program. back program, Under this Fair- was consistent with Nabours’s initial answer plaintiffs’ field would rent to condominiums denying any impression that Fairfield was purchasers prospective house of Fairfield knowledge program. priority-rent-back property, guests According to visitors. allegations it a Fairfield denied had complaint, represented defendants pro- A to contract with Client handle the units to be priority were rented with a gram, A’s office in the that Client was Fair- upon purchase, based the date of their and building, A field sales office that Client was the priority-rent-back program was to with Fairfield in continuous contact sales long as program continue as the rental was agents agent, and that Fairfield sales and/or alleged Plaintiffs effect. Fairfield representations pri- A made about Client arbitrarily program discontinued the without plaintiffs to ority-rent-back program induce notice to plaintiffs. or consent of purchase their condominiums. Under Decree a Consent with priority-rent- discuss Exchange United States Com- Nabours tried to Securities (SEC), filing A before prohibited program mission from with Client Fairfield was back conjunction plaintiffs’ Client A refused dis- marketing with lawsuit. condominiums contacted any Nabours and priority-rent-back program, its em- the matter with cuss Fairfield. position. allegations Fairfield told Client A that Fair- denied field’s Fairfield field would them if defend Nabours filed suit. it had a Client A to handle contract with served, After being priority-rent-back Client A again program, contacted that Client Fairfield and was reassured that Fairfield A’s office was in Fairfield sales office would defend the action. building, As the time to file and that A was in continuous Client however, approached, agent. answer Client A sales Client contact the Fairfield however, retained Montijo. allega- Tucson each of these Marc admitted A Moreover, agreed repre- he tions. when Montijo Respondent, following contacted Client did not know Respondent sent A up on expectation Client A’s that Fairfield indemnify A Client whether Fairfield would provide would a January defense. In a joint judgment in the event of a or sole letter, Respondent Montijo’s answered this, Respon- Client A all of against Despite inquiry indicating “objective that Fairfield’s did not raise that a con- possibility dent appears to one indemnify protect exist, might of interest much less flict discuss promising get [Client A]” and back to implications joint representation. Montijo awith final answer soon as as he could. Because answer due and July Respondent agreed was On after A yet Client A had not represent received final notifica- Client Fairfield informed Re- Fairfield, tion Montijo spondent filed an answer it not would “undertake appears pay against behalf of duty judgment Client A The [Client A] answer January against have been filed on judgment A] 1987. Be- the event of a [Client Montijo anticipated cause both A Client not did in- Fairfield.” suit, defending development Fairfield would be form Client A of until Montijo spent meeting A September Client little time formu- 10—more than lating the Accordingly, learning answer. Client after in- A’s months first Fairfield’s response substantially “general deni- tentions.
al.” confirming a letter his representation, plaintiffs’ waited more than 5 months interroga- sent a set of advising Montijo before complete. that Fairfield would to Client tories A to long defend A as pencil Client A’s A in the Client told Client answers and aligned. put Fairfield’s interests were Even them advised that he would their an- then, Respondent responded after hav- swers final form. also re- *7 ing following the inquiries quested signed, received from that A return a Client nota- (1) 1987; (2) 2, Montijo: completed letter dated the page March rized verification with 20, follow-up dated interrogatories. letter March which con- answer; (3) copy tained a Client of A’s letter was, position always A’s Client has (4) 11; 20, May dated May letter dated been, they prospective that offered condo- Stipulation which contained a and Order of purchasers priority-rent-back minium the Montijo Substitution Counsel of to Re- program upon purchase based date at the spondent copies of interrogatories general manager, Bob direction Fairfield’s complete. Client A Respondent finally they According Childs. to Client did not A Stipulation executed the and Order Substi- following that not know Fairfield was 26, tution of on Counsel June the trial until after priority-rent-baek program their judge signed July on it 1. contract with Fairfield had been terminated. Respondent they did not A’s A assumed pro- discuss Client un- Client testified that derstanding of the facts underlying gram working case was because Fairfield was Montijo with agree- renting issuing either or Client A before units and Client A was checks ing represent Client A Respondent, how- to individual condominium owners. Client ever, copy interrogato- had a to the Client A’s answer for A’s draft answers written approximately position. three months before under- were consistent with this ries taking representation. interroga- A’s A Client Some of mailed the to the Client answers Client responses allegations completed A’s and a verification form to tories complaint directly contrary Respondent July were on Fair- typewrit- the handwritten answers interrogatories submit Client A’s answers to was, however, not the case. ten form. This answers were inconsistent with Fairfield’s Respondent same admitted questions. 11, Respondent submitted September On true, if a con- Client A’s answers were interrogatory an- typewritten to Nabours positions flict of Fair- existed between the page that along with the verification swers Accordingly, Respondent field and A. Client had July Respondent signed A on Client meeting September held a on discuss inter- to various changed A’s answers Client Attending Client A’s draft answers. answers were so Client A’s rogatories A, meeting Norm Respondent, were Client position. with Fairfield’s consistent (Fairfield’s time), manager Johnson in-house he and Fairfield’s dent testified that (another employ- and Lon Franklin Fairfield Flora, counsel, the answers Terry crafted ee). During meeting, Respondent on behalf of Respondent submitted length disagreed Client A as to the of time According Respondent, he dis- A. Client priority-rent-back program was to run. interrogato- Client A’s answers to the cussed reviewing After A’s with Client contract and after Flora both before ries with Fairfield, Respondent Client told A that 10, 1987. meeting September one-year contract’s term limited the priority- changes making substantial Despite one-year program rent-back duration. interrogatories, A’s to various Client answers Respondent A disagreed Client told changes discuss the did not Respondent priority-rent-baek program supposed A, copy A a nor he send Client Client did to be continuous until Fairfield discontinued interrogatories that he submitted promotional program. fact, not Client A was aware behalf. their changed answers on Respondent had meeting, During made his September until interrogatories their potential to a inter- reference conflict of after had sub- year 1988—over est. A that informed Client mitted them. possibility there was a that a conflict would arose, arise if a conflict he would Respondent notified On June A representing
have to withdraw from Client set November 15. A that trial was Client and Client A would have to seek other coun- posi- their A became concerned about Client explain concept did sel. they because had not had tion in the lawsuit interest, specific type conflict of what Sep- their Respondent since any contact with arise, advantages might conflict Accordingly, meeting. tember joint or risks that existed because of Tucson attor- sought A the advice Client Moreover, representation. Respondent did hearing Eikleberry. After Client ney Jane might not advise Client A that he have a case, Eikleberry deter- version of the A’s Fairfield, indemnity against cross-claim for representation mined that did A that nor inform Client a con- presented Client A both Fairfield and *8 Respondent might be rais- constrained from interest, attempted to contact and she flict of ing certain defenses on Client A’s behalf problem. discuss the Respondent joint representation. because of the Respon- Eikleberry eventually spoke with 4, 1988, August but During September meeting, by telephone Re- dent A, Respondent phone mes- having left spondent, represen- Fairfield’s after Client and sending him a letter dated through sages A’s and after tatives went Client answers expressed her concerns. Ostensibly July in which she interrogatories. to save interest, conflict violating Respondent Client A from the Consent Decree denied Client A’s and although he that the SEC thus admitted between Fairfield and and RICO, were some- of the facts liability violating Fairfield’s versions avoid automatic continuing con- Because of urged A to at the what dissimilar. Respondent Client look of in- regarding potential conflict differently changing consider cerns situation and terest, to discuss Eikleberry called Nabours pressure Despite their answers. answers, agreed that a conflict Both change by their her concerns. their A stood Client day, discussing The next after Respondent existed. assumed would answers and Eikleberry, situation with co-parties, agree Client A decided to with the Commission’s discharge Respondent. Eikleberry finding 1.7(b), called Respondent violated ER Respondent and informed of his termination. provides: A, On September lawyer Client Eikle- A if represent shall a client berry, and Nabours met to discuss Client A’s may representation that client mate- version of During the facts. meeting, rially by lawyer’s responsibili- limited Client A discovered Respondent had ties to to a person, another client or third changed interrogatories. the answers their interests, by lawyer’s or own unless: Nabours believed Client A’s version of the (1) lawyer reasonably believes the facts and executed a written settlement representation adversely not be will af- agreement A dismissing with Client them fected; and from the suit. (2) the client after consents consultation. On October after Client A terminated representation When of multiple clients Respondent’s representation and before the undertaken, single in a matter date, Respondent scheduled trial reply filed a explanation consultation shall include support in partial summary of motion for implications repre- of the common A, judgment on behalf of Fairfield and Client advantages sentation and the and risks for whom he was still of record. involved. Despite having had a conversation with Eik- The first in step analyzing whether Re- leberry on October in which she confront- 1.7(b) spondent violated ER is to determine Respondent ed about interroga- the doctored representation whether answers, tory Respondent relied the an- materially Client A by limited swers in support reply. Respondent’s responsibilities dent’s If Re- Fairfield. motion was denied. After Nabours dis- spondent’s representation of Client A was suit, missed Client A from the Fairfield Fairfield, not limited his responsibility to adopted position all attributed If, hand, there is no conflict. on the other responsibility for priority-rent-back pro- limited, representation was gram to Client A requires then the rule rea- facts, Based on these the Commission con- sonably representation believe that his will 1.4(a) cluded that violated ERs affected, adversely not be (b) (Communication), 1.7(b) (Conflict must obtain his client’s consent after consul- (Candor Interest), Tribunal), 3.3 Toward provide tation. The ER comments to 1.7 8.4(c) (d) (Misconduct). Despite Respon- guidance determining in some whether an arguments contrary, dent’s we find impermissible conflict exists. The comments convincing clear supports evidence provide that: find, findings. the Commission’s further impermissible may An conflict exist evidence, by clear convincing that Re- discrepancy reason substantial 8.4(c) (d). spondent violated ERs testimony, parties’ incompatibility posi- opposing party tions relation to an or 1.7(b)—Conflict a. Ethical Rule of Interest substantially fact differ- that there are The Committee concluded Fair- possibilities of ent settlement the claims adverse, field’s and Client A’s interests were question. liabilities 1.7(a). and thus violated ER facts, however, Based on urges analyze the same set of the court *9 Respondent Commission found that violated conflict of rules in terms of the interest 1.7(b). brief, Respondent applicable ER As his to underlying notes in substantive law 1.7(a) Respondent against comments to ER 1.7 that A state claim asserted Client applies arising great similarity to pains conflicts of interest from takes to be- show representation opposing parties, while tween Client and Fairfield’s interests A’s 1.7(b) applies to showing possible conflicts of interests for the resolu- arising outcomes representation Respondent’s from the co-parties. Be tion of RICO claim. basic expo- the representation argument cause case involved is Client A faced no real that claim, between discrepancy other. substantial which was found- from the RICO sure evident racketeering co-parties’ of events was and actual fraud claims. versions ed complaint Fair- claims that under either answers to from both the underlying interrogatories or A’s that each field’s Client version to the answers events, A was not at risk because the Client further not warrant party filed and does against claims asserted both Client A were discussion. jointly Fair- severally, and Fairfield yet basis another provide The comments indemnify A agreed field had to Client for in this case. a of interest finding for conflict any joint judgment. argument This fails for may a exist state that conflict The comments a number of reasons. different possibilities “substantially when conveniently forgets that or liabilities” exist. of the claims settlement A, he Fair- agreed represent to Client when (comments). made no ER 1.7 A; only had agreed field to defend Client no from this A released effort to have Client concerning made mention was indemnifica- Yet, the ease suit. as was evident from Respondent obviously tion. understood the to A’s was able which Client new promise a to defend and difference between a suit, from Client get Client A released indemnify. promise day to theOn same that substantially potential A’s for settlement was A, began representing he Client rep- greater than Fairfield’s. asking about wrote Fairfield its intentions Fairfield, A resentation of both Client letter, regarding indemnification. In that substantially positions light of different their stated, have undertaken a “we settlement, yet is another basis in terms of A], duty I [Client but believe such defend finding a conflict of interest. obviously duty duty independent from a difficulty Why Respondent has such added.) pay judgment.” (Emphasis a representation both accepting that his nothing prohibited Nab- importantly, More impermissi Client created an A and Fairfield amending complaint ours and as- beyond this court’s ble conflict of interest serting racketeering against a claim Client A only understanding. Respondent need recall individually. thought Nabours that there general to Fairfield’s the letter he wrote strong possibility get a he could how he ran afoul of counsel to understand individually. judgment against A Client day agreed he rule. On the ethical And, complaint from its answer its A, Respondent represent wrote the Client interrogatories, answers to the Fairfield’s counsel, following general Ter to Fairfield’s strategy respon- appears lay to have been to ry Flora: sibility representations pri- for the about respect representation our With ority-rent-back program doorstep at the A], phone I indicated [Client party. Considering some other third agreed previously would we had representations A making Client admitted it our obvious defend since is to [Client A] priority-rent-back program about the while A] is as advantage [Client assure program Fairfield claimed that no such exist- friendly possible to us. ed, any representations the con- added.) loyalty is trary (Emphasis knowl- Client were done without Fairfield’s consent, rules. ER edge likely heart our conflict of interest Client A was the third (comments) (“Loyalty is essential ele- 1.7 party. relationship lawyer’s to a ment in the position adopted is the Fairfield Not client.”). clearly This letter demonstrates interests, contrary it to Client A’s but loyalties lay: Respon- where contrary Client the facts. A’s version.of being aligned with Fair- dent himself as saw state, And, ER as the comments to 1.7 And, represen- paying field—the client. parties’ testi- discrepancy substantial bias Client A reflected his toward tation of finding that mony is another basis loyalty to Client A and his lack Fairfield of interest exists. As discussed conflict *10 above, replete with evidence show- The record A’s and Fairfield’s versions of Client joint representation ing contrary to that underlying events were each an impermissible
created conflict interest. a arose Because conflict of interest from Repeating every piece of supporting Respondent’s joint representation evidence of Client A would be say redundant. Suffice it to Respondent and Fairfield and failed because based on the findings, Committee’s factual to obtain Client A’s informed consent to Re- adopted by court, spondent’s Commission and this representation, we find continued 1.7(b). no finding Respondent have trouble impermis- that an violated ER sible conflict of interest arose from 1.4(a) b. Ethical Rules joint dent’s representation of Client A and (b)—Communication Fairfield. Both the Committee Commis Having existed, found that a conflict Respondent sion concluded that violated ERs question Respondent becomes whether rea- 1.4(a) (b), provide: sonably believed that the conflict would not (a) lawyer keep reasonably A shall a client adversely representation affect his informed about the status of a matter and Respondent whether obtained Client A’s con- promptly comply requests with reasonable sent joint representation after full for information. 1.7(b). consultation. See ER This court (b) lawyer explain A shall a matter to the need not decide Respondent whether reason- reasonably necessary permit extent ably believed representation that his regard- client to make informed decisions adversely Client A would be not affected ing representation. Respondent because comply failed to brief, Respon- In the issue statement of his requirement necessary consent repre- dent questions whether there is “clear and party sent a a when conflict of interest convincing legal support evidence to conclu- present. 1.4(a).” respondent
sion
E.R.
violated
only
The
arguments Respondent presents,
The
specifically provides
rule
however, are that
had
Commission
not
when
representa
the conflict arises from the
Respondent
found that
information
concealed
multiple
matter,
tion of
single
clients in a
A,
A,
from Client
that he abandoned Client
attorney must explain
implications,
ad
or
A
keep
that he failed to
Client
informed
vantages, and
of the
represen
risks
common
any
because
“ulterior
reason.” None of
1.7(b).
tation. ER
Client A testified that
arguments
any bearing
these
has
on whether
only
time Respondent mentioned a con
1.4(a).
Respondent
or not
violated ER
flict of
during
meeting
interest was
on
1.4(a) merely
issue under ER
whether or
September
According
to Client A
not Respondent kept
reasonably
Client A
Respondent
informed Client A that
there
informed about the status of the case.
possibility
was a
conflict would arise
that,
arose,
court,
if a conflict
independently reviewing
he would have to
This
after
record,
withdraw from representing Client A
Respondent
concludes
violat-
Client A would have to seek
Respondent represented
other counsel.
ed this ethical rule.
explain
26,1987
did
concept
A from
approximately
Client
June
interest,
specific
conflict of
type
what
of con October
According
his time
arise,
sheets,
might
flict
or
advantages
had minimal contact with
risks
joint
that existed because of
repre
during
repre-
Client A
he
16 months that
Moreover,
sentation.
neither
sented Client A.
met with
time,
Client
might
advised
A that he
have a cross- Client A
on September
one
against
indemnity
claim
during
persuade
Fairfield
nor in
he
which time
tried
formed Client A
might
position
Client
their
A “rethink”
their
raising
interrogatories
constrained
certain defenses on
draft answers to
that conflict-
joint
Client A’s behalf
repre
position.
because of the
ed with Fairfield’s
A
possibility
billing
sentation.
mere mention of the
for a
reflects
calls Client A
total
interest,
more,
of a conflict of
phone
without
is not
of 3
with Re-
hours
conversation
requirements
regular
sufficient
to meet
spondent. Despite sending
Fairfield
topics
discovery,
ethical rules.
status letters
such
*11
research,
infor-
A with sufficient
negotiations,
provide
did not
Client
legal
and settlement
to
them
make informed
Respondent sent no such information
mation to enable
to
fact,
he
when
whether
regarding
representation.
Client A.
asked
decisions
passed
any
regarding the sta-
information
Moreover,
again
Respondent once
Septem-
A
tus
the case Client
after
requirement
ER
into
1.4.
misreads a scienter
meeting, Respondent
ber
admitted
unintentionality of an
intentionality or
The
indirectly
“only
through
he did so
Fairfield.”
irrelevant in determin
attorney’s conduct is
finding
Respon-
have little
that
trouble
question
The
ing a
ER 1.4.
violation of
in-
keep
reasonably
dent faded to
Client A
attorney provided
or not the
simply whether
1.4(a).
formed,
required by
as
ER
to en
information
the client with sufficient
found
Commission
that
informed decision
client to make an
able the
1.4(b) by failing
explain
ER
violated
case,
In this
regarding
representation.
necessary
litigation to Client A to the extent
did not.
we find that
permit
them to make informed decisions
regarding
represen-
continued
Rule
c. Ethical
3.3—Candor
Respondent challenges
tation of Client A
Toward Tribunal
finding
ER
the Commission’s
that he violated
challenges
Respondent also
the find
1.4(b), arguing
supporting
that the evidence
for
ings
he
ER 3.3. The basis
violated
finding
“anything
this
clear
con-
but
conclusion,
was later
the Committee’s
vincing.” According
Respondent,
Commission,
Respon
adopted by
must
his
referring
Commission
have been
using his own revision of
dent’s conduct in
representation
meeting
continued
after the
inter
to Nabours’
Client A’s draft answers
And,
September
Re-
as far as
A’s
rogatories, along with Client
verification
concerned,
spondent is
the evidence shows
answers,
support
as
for their handwritten
fully explained
he
implications
Respondent’s Reply Opposition
to Motion
thought
Client A’s answers and
Summary Judgment.
using
these in
conflicts about Client A’s
re-
answers were
terrogatories,
that the
Respondent intended
rule,
Any
solved.
violation of this
repre
court
his revised answers as
consider
argues,
unwittingly.
dent
was committed
position on the issues
senting Client A’s
Respondent’s argument fails for a number
Yet, Respon
interrogatories.
raised in the
arguments
his
Despite
of reasons.
had
seen the
dent knew that Client A
not
contrary, nothing
legal
in the Commission’s
interrogatories,
some
answers to
revised
suggests
Findings
conclusion
were
its
contrary to
directly
Client A’s
of which were
limited to
disclosure efforts
And,
importantly,
more
Re
draft answers.
And,
September
meeting.
even
interrogatories
spondent
submitted these
legal
if this
were
conclusion that
A
learning that
claim
even
Client was
after
intended,
court,
inde-
Commission
“an
changed
their an
ing
had
pendent arbiter of both the facts and law”
interrogatories
their
without
swers to
matters,
disciplinary
is not bound
either
knowledge or consent.
legal
the Committee’s or the Commission’s
part:
provides in
Ethical Rule 3.3
See, e.g.,
Kersting,
In re
conclusions.
(a)
lawyer
knowingly:
A
shall
Ariz. at
case the in necessarily applicable answers is not 3.4(a), Respondent then Respondent determine whether knew violated ERs whether 3.4(b), that the he answers submitted were false. and 4.1. Respondent arguing, way, in convoluted in question—3.3, A1 of the ethical rules that Client A’s handwritten draft answers 3.4(a), 3.4(b), 4.1—expressly impliedly or true,
were not or Respondent at least that part require knowledge sort of on the some true, they believed were not and that the attorney. development the factual Respondent answers to submitted the court in the of ER 3.3 that resulted violation was were, to the best of knowledge, his time. interrogato- Respondent that submitted the Thus, according to Respondent, because learning ries to Client A the court that after evidence he submitted to the court either was disclaiming was At the time answers. true, thought or true he it was he did not Respondent interrogato- that submitted violate ER 3.3. counsel, however, opposing ries to
Athough argument, a novel Respondent Client A dent had not received notice that grasp fails to nature the misconduct claiming was that the revised were answers gave that rise this violation. The false untrue. statement or false Respondent evidence that Respondent Athough A that Client claims offered to the court was that the answers he they knew that never in their claim wavered represented submitted Client position. A’s they of the represented the existence Respondent well aware that the “re- priority-rent-back program at Fairfield’s di- vised” he answers submitted as A’s Client rection, vehemently Respondent claims that not represent position. did Client A’s Based he submitted reflected the answers actions, Respondent’s on our review we during agreement parties reached unquestionably Respondent find that violated sup- To September meeting.- their 3.3; ER fails to understand claim, port his introduced affida- simple proposition troubling. indeed representa- vits from a number of Fairfield’s September tives who 10 meet- attended d. Ethical Rules 3.4 and 4.1—Fairness ing. support Respon- A1 affidavits Party to Opposing and Truthfulness change dent’s claim he that was authorized in Statements Others he did. Client A’s answers as Given urges The State Bar the court to conflicting testimony cannot presented, we that Respondent’s changing find conduct in say convincing that there is clear and evi- interrogato Client A’s draft answers to Respondent knew that the an- dence that submitting signed ries and them with the represent Client swers he submitted did not 3.4(a), 3.4(b), verification also ERs violated position opposing them A’s when he sent Athough 4.1. these violations al were Accordingly, find no violation of counsel. leged complaint, neither the Commit 3.4(a), 3.4(b), or ERs 4.1. tee nor the Commission concluded that Re spondent violated these ethical rules. We e. Ethical Rule 8.4—Misconduct agree with the Committee and the Commis objects finding that he presented sion that the evidence is insuffi 8.4(c) (d). objec- His sole violated ERs Respondent’s cient find that conduct Athough procedural tion nature. interrogatories connection violated alleged Bar conduct State 3.4(b), 3.4(a), ERs or 4.1. 8.4(c) litigation violated ERs in the Fairfield (d), recognize that con- it seems anomalous that the Committee reached no such Commission, interrogatories report, in its how- use clusion. The ever, Commission, signed by unani- duty verification his “[t]he violated stated: court, 3.3, eight adopted Commits duty aye, candor ER but not his mous vote of fairly and Conclusions of opposing party Findings deal with the tee’s Fact 1.4(a), duty or ERs counsel to be truthful in state- Law that violated But, 3.3, 8.4(d), 1.4(b), 1.7(b), 8.4(c), alleged develop- ments others. the factual Re- complaint against ment resulted the violation of ER 3.3 in Count One NARRA- IN CASE OF not OF JUDGMENT did Because Committee spondent.” MONTE, CV 87-13534.” DEL Respondent violat- MORE VS specifically conclude 8.4(c) judg- (d), a satisfaction The letter enclosed Respondent argues ed ER that the and advised that re- ment form could not conclude the Commission *13 (d). 8.4(c) return only upon the Respon- check be cashed or should spondent violated ER judgment. of of executed satisfaction acknowledges that the Commission has the dent letter, satisfaction Respondent authority modify received the Committee’s about the check on or judgment, and Findings of Conclusions of Law. Fact and 21, 31, however, Miller 53(d)(3), On November 1988.' argues, rule Ari- October He Court, reiterat- follow-up letter requires Respondent a Supreme sent zona Rules Respondent not cash ing should conclusory statement con- more than and returned report. check until he executed tained in the Commission’s indicat- Miller also judgment. satisfaction Although prefers the court some dis stop he letter that would follow-up ed in this of the reasons for the Commission’s cussion the satisfaction of payment on the check if modifications, the failure to Commission’s by returned December judgment was not way provide this discussion in no limits this to Miller’s No- Respondent respond did not Respon ability court’s to find this violation. however, did, deposit 21 He vember letter. matters, in forgets disciplinary dent in on December the check his trust account independent of both court acts as an arbiter 11,1989, January Miller unsuccessful- 1. On Neville, Ariz. the facts and the law. at on the ly place stop payment order tried to 108, reviewing P.2d After on Janu- Respondent check. Miller wrote record, convincing by find clear and evi 17,1989, stating had been ary that the check 8.4(c) Respondent dence ERs violated Respondent must return cashed and that (d). and judgment. satisfaction receiving response after no February On 3. Count Two filed a motion to Respondent, from Miller Because the in count undis- facts were Respondent sign and return the compel puted, disposed the Committee of this issue granted judgment. The court satisfaction by summary judgment, filed on which was compel on March and the motion to September 1990. The Commission attorneys’ client in awarded Miller’s $250.00 Fact, Findings adopted the Committee’s finally signed satisfac- Respondent fees. adopt which we also and are summa- he ulti- judgment on March tion of rized below. mately paid $250.00 Miller’s clients The sued Narramores Pic-N-Save Del his funds. own Corp. personal injuries Monte that Mrs. facts, both Committee on these Based exploding Narramore sustained from an can Respon- concluded that Commission Respondent represented of enchilada sauce. Despite and 3.2. dent violated ERs 1.15 Narramores, Miller Michael Owen contrary, we Respondent’s arguments to the represented the defendants the action. convincing evidence that find clear and trial, 13, 1988, September jury On after these two rules. violated judgment was entered favor of the Narra- against 1.15—Safekeeping mores Del Monte for the sum of Rule a. Ethical $2,977.64. Property On October after the filing appeal expired, had Re- time for an con- and the Commission The Committee advising he spondent wrote to Miller did acting nature was in the cluded asking appeal Miller for intend Miller’s fiduciary both his own and of a payment judgment. tort check Respondent cashed the client when Accordingly, sent him. because that Miller On October Miller sent $2,977.64. without execut- the check cashed dent a letter with a check for judg- returning the satisfaction of ing company and check was from an insurance directed, both the Committee and ment as “FULL SATISFACTION stated on its face: ing Commission concluded that capacity. escrow See Black’s Law (5th 1979) fiduciary his obligation Dictionary (defining violated Miller’s ed. es- clients, delivery crow as of money party in violation of ER 1.15. one person sup- hands a third who is Respondent essentially argues that posed to money happening hold the until the Miller’s ownership clients had no interest performance contingency of a condi- the check that Miller sent tion, person after which the third to deliver judgment because the in the case final property yet party.) Trusting another and Miller’s clearly clients Respon owed Respondent, Respondent money Miller sent money dent’s clients the tendered. Accord specifically satisfy that was to be used ingly, Respondent argues that Mil because judgment against clients. *14 ler’s clients money had no in interest $2,997.64 arguments contrary, to the was tendered, ER 1.15 is inapplicable. the “property of others” until complied with the conditions to agrees The court attached with the Committee’s cashing of analysis of the check. the violation. Ethical rule 1.15 requirements. has three basic re- The rule above, $2,997.64 As discussed (a) quires lawyer a property to: “hold property check was the of Miller’s clients persons clients lawyer’s or third a in until executed and returned the possession representa- in connection with a judgment.3 satisfaction of The rules re separate tion lawyer’s from the proper- own quired Respondent property sep to hold that (b) ty,” “promptly deliver to or the client property. Respondent arate from his own person any third property funds or other Instead, Respondent did not do this. violat person the client or third entitled ed that Miller and the trust Miller’s clients receive,” (c) keep property in which both placed in cashing him check and dis lawyer person and another claim inter- tributing proceeds after Miller told Re separated ests accounting until there is an spondent going stop pay was that Miller added). (emphasis severance. ER 1.15 ment on the check because had to satisfy failed the condition attached its The comments to ER specifically 1.15 state Accordingly, agrees tender. this court with lawyer property “[a] should hold of oth- both the Committee and Commission that ers with the required professional care of a $2,997.64 Respondent’s handling of the check fiduciary.” Fiduciary is defined as: violated ER 1.15. person holding [A] the character of a trust- ee, or a analogous character to that of a Litigation 3.2—Expediting b. Ethical Rule trustee, respect in to the trust and confi- Both the Committee and the Com dence scrupulous involved in it and the Respondent’s delay mission found that in ex good requires. faith and candor which it ecuting judgment the satisfaction of violated 3.2, requires lawyer
ER a “make (5th 1979). Blade’s Law Dictionary 563 ed. expedite litigation reasonable efforts to con It capacity was in this that Miller sent Re- with sistent the interests the client.” Re spondent check, spondent settlement specifically argues that there no violation conditioning cashing upon any delay of the check executing judgment because executing any the satisfaction of was “neither inconsistent with nor had judgment. sense, thing a was act- to do with the interests of his client.” Respondent appears arguing cashing requirements necessary extinguish to be a technical a check JUDGMENT OF marked "FULL SATISFACTION judgment previously debt. As court has stat- " ed, term, IN CASE OF NARRAMORE VS '[sjatisfaction’ a technical its MONTE, DEL CV 87-13534” constituted satis- application judgment payment to a it means the underlying judgment. Respondent faction judgment, money of the due on the which must appears confusing concepts of Accord record, nothing be entered of but this is a judgment. Satisfaction with satisfaction of legal judgment." Rager v. Su- satisfaction of Although marking may a check "full satisfaction” Serv., perior Coach Sales & disputed arising serve as release claim added). (1973) (emphasis tort, either contract it does not meet trouble We have little litigation find such a violation. further that the check; thus, doing so. he was over before received delay Respondent argues his actions did not handling of court finds This litigation. judgment cheek satisfaction administra- prejudicial offensive but again Respondent missed the Once has behavior justice. Respondent’s tion adopts definition of
mark. He too narrow a executing the sat- cashing the check without “litigation.” Litigation is as a “[Ile- defined inexcus- requested is judgment as isfaction action, gal inciting proceedings all there- Miller advised Respondent specifically able. (5th Dictionary Law ed. in.” Black’s appeal and did not intend clients 1979) added). (emphasis interest A client’s judg- for the send the check asked Miller to judgment entry does not end with the complied ment debt. Miller completion legal but ends with the remitting the foil amount request, dent’s legal complete action. This action was when only that Re- asked judgment; Miller judgment the satisfaction of was filed. judgment. spondent execute a satisfaction Moreover, Respondent misreads ER 3.2. Instead, Respondent forced Miller file imposes duty That rule affirmative delayed unnecessarily compel motion *15 lawyers to to expe- make reasonable efforts by approximately 5 months. process litigation. dite The caveat—consistent with time but the only wasted not Miller’s This the interests of the client—insures that a ultimately to issue had of the court that time lawyer’s expedite litigation efforts to do not Respondent to execute the directing an order legitimate with the client’s interests. conflict fact Particularly galling is the satisfaction. comments, however, The make it clear that Respondent’s no for that there was reason “delaying discouraged. In tactics” are ana- judg- of the satisfaction refusal to execute 3.2, respondent lyzing whether a violated ER ment. question competent is whether a law- “[t]he unnecessarily Not did yer acting good in regard faith would case, judicial system but in this burden course of as having action some substantial unchecked, behavior, ad- this of if can kind (com- purpose delay.” other than ER 3.2 judicial system versely as a whole. affect the ments). by As was evident the trial court’s encourages voluntary The settlement court costs, imposition purpose no substantial Re- type The behavior judgment debts. forcing was served in Miller to file a motion judg- spondent engaged only encourages in compel the satis- execute judgment creditors to ment debtors to force court, therefore, judgment. faction This to recover a judicial proceedings resort Respondent’s unjustifiable delay finds in will not condone this judgment. This court executing judgment the satisfaction of violat- conduct, type egregious which unnecessar- ed ER 3.2. judicial already ily overburdened burdens an system. Accordingly, we find 8.4(d)—Conduct Prejudicial c. Ethical Rule to the admin- prejudicial actions were dent’s to the Administration of Justice pro- justice thus constituted istration of misconduct, of ER in violation fessional alleged The State Bar in its com Gresham, 162, 8.4(d). 864 Or. In re 318 plaint conduct in connec Cf (1993) disciplined for (attorney 363 P.2d handling tion with his of the Narramores’ deadlines, neglecting imposed court meet judgment satisfaction check violated ER unnecessary placed an additional and which 8.4(d), provides profes is a “[i]t system). judicial burden on lawyer to: ... en sional misconduct for gage prejudicial conduct that Sanctions justice.” administration of Neither the Com and the Commission Both the Committee mittee nor the Commission concluded that suspended be conduct connection with the recommended further rec- year. The Commission judgment violated ER for one satisfaction check 8.4(d). Respondent pay restitution urges The Bar this ommended State court $2,258.60, Committee, Commission,
to Client A in the amount of
which The
but not the
represents
they paid
the amount
to the attor-
also considered the effect of sanctions on
ney who took over their case. Respondent Respondent’s practice
mitigating
as a
factor.
recommendations,
challenges these
urging a
Respondent challenges the Commission’s
Bar,
lesser sanction. The State
on the other
aggravating
consideration of the 3 additional
hand, urges the
Respondent.
court to disbar
Committee,
ap-
by
factors not found
plicability
aggravating
fac-
responsibility
ultimate
of each individual
for decid
factor,
ing appropriate attorney
except
multiple
tor
for
discipline
violations
rests with
Neville,
urges
and he also
the court to consider
court.
protect
public.”
Kersting,
Factors Not Found
a. Aggravating Mitigating Factors Respondent’s Because the bulk of chal- Experience 2. Substantial lenges involve findings the Commission’s of Respondent challenges propriety factors, aggravating mitigating different applying experience of in his substantial adopt, begin analysis which we we our here. practice aggravating of law as an factor. following The Committee aggra- found the specifically provide The Standards that sub (1) vating multiple factors: violations of the experience practice may in law stantial of (2) Conduct, Rules of Professional substantial be aggravating considered an factor. See (3) experience law, in practice of 9.22(i). Standard Both the Commission and directly acknowledge failure wrongful this court have this routinely considered as nature of his conduct. Commission factor, according prop an it aggravating only aggravating found not these 3 factors weight determining appropriate er when (4) aggravating but 3 additional a factors: Respondent’s light sanction. of unblem (5) motive, or vulnerability dishonest selfish during disciplinary same ished record those victim, (6) of making indifference 9.32(a), past years, we find see Standard restitution. any aggravating of his effect substantial Both the experience practice Committee and the in Commission law is offset Respondent’s found prior mitigating prior, discipline- absence of disci- effect his plinary record and cooperation Accordingly, with the disci- free record. we conclude plinary proceedings mitigating weight.4 factors. this factor is entitled to no Despite frequency, practice aggravating its this is the time that in as an first ence law” practice considering experi- questioned. Respondent ap- "substantial factor has been alert him edge experience that would or 3. Selfish or Dishonest Motive instead, A de- possibilities; Client was these challenges Respondent the Commis was Respondent. Respondent pendent upon finding “a selfish mo sion’s dishonest or responsible recognizing that conflict Respondent tive” an aggravating as factor. might A’s that Client interests existed and be argues applicable factor is not by obtaining sepa- served have been better cause nor the Com neither the Committee a different pursuing representation rate 8.4(c) by mission found that he violated ER fact, difficulty considering the strategy. dishonesty, engaging involving in conduct recognizing has had fraud, deceit, misrepresentation. Not existed, is ludicrous it conflict interest only Respondent’s argument moot because argue essentially ER this court concluded that he violated edu- because his A was not vulnerable Client 8.4(c), analysis ag Respondent’s but have alerted experience should cation and gravating factor is flawed. problems inherent him to the “motive,” speaks in This factor terms A and joint representation of Client dent’s repre- not conduct. Income from Fairfield circumstances, this Fairfield. Under these Respondent’s gross 20% of sented revenue. finding that Client be remiss court would Fair- protecting interest merely because Client A was not vulnerable his position, large field’s and thus a source of college licensed real educated and a A was revenue, beginning of from the obvious Accordingly, agree with estate broker. Client A. We need representation of vulnerability of vic- the Commission Respondent’s letter to Fair- remember aggravating factor. tim is an day agreed represent field that he A to Client see where interests Making Restitution Indifference lay.5 agree We therefore with the Commis- challenges also represented sion that both findings his indifference about Commission’s Fairfield, notwithstanding Client A and making restitution. interest, obvious conflict for selfish rea- Committee did recom that because the sons. sanction, the record mend restitution obviously con *17 that Commission reviewed Vulnerability of Victim to relating an indifference tained no evidence Respondent argues expe that as an find disagree and making to restitution. We rienced, licensed real estate broker with Respondent is clear that that the evidence college degree, Client A was a vulnerable making to restitution. was indifferent disagree. victim. We A victim’s vulnerabili they fees A testified that incurred Client ty person’s turns not back educational $2,258.60 as they Eikleberry when hired ground experience, work but rather on attorney. also testified Client A their new situation. pay to their they that did not have the funds paying the balance repeatedly attorney As has noted in full but were brief, very Respondent did not contribute throughout this over time. his case involved And, to costs. His failure complex litigation. previously anything as toward these we contin- noted, substantially is consistent with his parties make restitution had different Furthermore, of misconduct. possibilities settling the or liabili uous denial claims impo- challenge to the Respondent’s special knowl- current ties issue. Client A had no at be considered peared challenge or how this factor should to the whether to "hint” an overall factor, disciplinary process. questioning why in the his of this continued use practice aggravating years 10 is an considered not, however, develop fully letter, He an respect factor. did "With wrote: In this And, A], challenge we representation overall to this factor. because I indicated on [Client to our by agreed previously is phone that the effect of this factor offset we had that concluded that disciplinary since to obvious A] unblemished record it is our [Client would defend friendly advantage years, [Client A] to is as his assure over the same 10 we need not address added.) however, (Emphasis position, possible as us.” challenge. to We take no 70 1, 8, Hogan, 84 argu- Malloy
sition
restitution makes his entire
ment.
v.
378 U.S.
brief,
1489, 1493-94,
(1964).
opening
ment
12
moot.
his
S.Ct.
L.Ed.2d 653
argues
requiring
§
dent
pay
him to
the Article
10 of the
Constitution
Arizona
attorney
costs
substantially
provision.
incurred
Client A’s new
contains a
identical
inappropriate
attorney
because the new
Supreme
has de-
United States
Court
did,”
“would never have done
she
what
“had
the sole
of the self-
termined that
concern
she not reached [an]
[of
erroneous conclusion
incrimination clause whether a witness is
argument
law].”
current
give testimony
forced to
that will lead
past
his
actions exhibit a clear
indifference
imposition
penalties
to criminal
affixed
making
adopt
restitution.
therefore
States,
U.S.
acts. Ullmann v. United
350
Commission’s conclusion
422, 438-39,
497, 506-07,
L.Ed.
76 S.Ct.
100
making
was indifferent to
restitution.
States,
(1956);
Kastigar
511
accord
v. United
1653, 1661,
32
406 U.S.
92 S.Ct.
Acknowledge
6. Refusal
(1972). Thus,
case,
212
L.Ed.2d
Wrongfulness
only possible penalty
disciplin-
where the
His Actions
sanctions,6
ary
in-
the salient constitutional
argues
further
quiry
are
disciplinary
is whether
sanctions
privilege against
his
self-incrimination was
“penalties affixed to
acts.” Courts
criminal
using
violated
our
failure
acknowl
question
considered this
have
have
edge
wrongful
nature of his
as
conduct
unanimously responded negatively.
See
aggravating
an
factor.
asserts
(7th
n.
Daley,
re
F.2d
Cir.
principles,
reject
criminal law
1977)
omitted).
(citations
admit,
guilt
use
a defendant’s refusal to
stated,
repeatedly
As
court
“the
has
punishment,
enhance the defendant’s
should
objective of
is to
disciplinary proceedings
apply
disciplinary proceedings.
He
public, the
protect
profession
penalize
unsuccessfully
him for
de
justice
punish
not to
administration
fending himself coerces him either
“con
Kastensmith,
Ariz.
the offender.” In re
fess” or run the risk of an increased sanction
(1966).
The func-
this, Respondent
argues, violates his
proceedings is not
deter-
tion of state bar
right against self-incrimination.
specific
mine
of an
whether
conduct
Although Respondent
failed to cite
law,
violates the criminal
but whether the
discussing
cases
the extent and determina-
necessary
attorney retains the attributes
attorney’s right
tion of
against
self-incrim-
attorney’s responsibilities
fulfill an
to the
disciplinary proceedings,
ination in
this issue
him,
well
court that
licensed
as
extensively litigated
has been
and has been
E.g., Daley, 549
at 475. Be-
public.
F.2d
See,
subject
of numerous commentaries.
disci-
primary
cause the
function of state bar
*18
Annot.,
e.g.,
Extent and Determination
remedial,
right
is
plinary sanctions
the
Attorney’s Right
Against
Privilege
or
against
not attach
Self-
self-incrimination does
Inarimination in
or
Dis-
Disbarment
Other
only pen-
disciplinary
when
sanctions are
Cases,
ciplinary Proceedings—Postr-Spevack,
See,
exposed.
respondent
alties to which a
is
(1984). And,
4th
AL.R.
our research
e.g.,
Accordingly,
Daley,
72
(recommended
526,
duty
sanctions for
breaches
Ariz. at
at
(discussing
P.2d
1.3).
owed to clients are tailored to lawyer’s men-
preface
Standards
and Standard
injury
tal state
potential injury
and
or
however,
long recognized,
have
that “[t]he
client);
Levine,
146,
see also In re
174 Ariz.
discipline in each situation must be tailored
170,
(1993) (Standards
847 P.2d
case;
perfection
the individual
neither
are
in determining
useful tool
proper sanc-
uniformity
nor absolute
can be achieved.” In
tion).
violations,
Respondent’s
Based
Wines,
re
135 Ariz.
following
apply:
Standards
Levine,
(1983); see,
e.g.,
Ariz.
(1)
Respondent’s
1.7,
as to
violation of ER
73
524,
violations,
self-dealing.
Ariz.
768
Pappas, 159
at
nor Petrie involved the number of
violations,
types
aggrava-
house of cards col-
or the same
at 1169. When his
P.2d
financial
ting mitigating
present
Respon-
misrepresented
in
lapsed, Pappas
factors
he
dent’s case.
continued
picture
his clients while
159 Ariz.
Pappas,
pockets.
line his own
See
Respondent also
in support
cites Ockrassa
528,
(misrepresenting
768
at 1173
at
P.2d
576,
position.
of his
165
P.2d 1350.
Ariz.
799
liquidation
extent of assets available
case,
imposed
suspen-
In that
a 3-month
liquidation
selling remaining assets
then
attorney represented
sion when an
the state
interest). Re-
had
companies
in which he
prosecution against
in a criminal
his former
from that
spondent’s
cry
far
was a
behavior
Ockrassa,
576-77,
client. See
165 Ariz. at
Although
by Pappas.
exhibited
at
As the supplemental State Bar noted in its quire Respondent successfully a complete brief, Respondent argument raised this for college in course ethics at an accredited appeal first time on his this court. pass law and Professional Re- Multistate Although Respondent And, submitted an affidavit sponsibility Examination. to further in his reply averring brief that he closed his protect public repeat from 1, 1991, office August no in evidence conduct, re- unprofessional we also dent’s appeal supports fact, record on his claim. In quire Respondent complete the Profes- argues State Bar that Respondent had Bar of by sionalism Course offered the State from practice withdrawn of law. Arizona. Notwithstanding that it too is outside the record, the copy State Bar included a Expenses B. Costs and advertisement April that was run in the 1992 Respondent’s objections nowWe address edition of the Maricopa Lawyer in which expenses to the costs and assessment for advertising was his services. Respondent’s incurred Bar. State Regardless parties’ claims, our review First, objections objects are he twofold. is limited to the record on appeal. See rule expenses the assessment for various that the 53(e), Court; Arizona Rules the Supreme during Bar disciplinary State incurred this Killeen, 126, 134, Gold v. 50 Ariz. 69 P.2d cf. Specifically, Respondent objects action. (1937) (citations omitted) (limiting screening ex- assessment for costs and record). appellate in review civil case to Be costs, penses, staff investigator bar counsel cause no in supports evidence the record his binders, expenses, photocopies, legal pads, claims, reject Respondent’s argument supplies. and office that he should be credited with the time that costs, power the court’s are to assess which he voluntarily withdrew from the practice of defined as “all sums as such in civil taxable law.8 action,” expenses, which are defined as d. Additional Sanctions costs, obligations money, “all other than necessarily incurred the state bar in the The court particularly is with concerned performance of complete its duties under acknowledge failure to rules,” may these to costs that limited wrongfulness his conduct. 46(g)(7) taxed a civil action. See rules has charges every contested step these (9), Supreme Arizona Rules of Court. process and still fails to understand how Alternatively, Respondent argues conduct ran afoul of the ethical rules. expenses assessment outside those recov- comprehend failure to what was in a apparent erable civil action is a form of people9 punish- disturbs this ment, court which contrary because to the likely repeat purpose stated Second, lawyer which he discipline. fails There- ob- understand. fore, reinstatement, as a condition of jects requested we re- specific amounts Having rejected Respondent’s arguments attorney suspended practice by time procedural grounds, unnecessary order). it is to discuss court attorney the merits of his contention that an attorney An who credit for of a seeks the time during should be credited with the time "voluntary practice withdrawal” from the lawof attorney voluntarily prac- withdrew from the against period suspension of enforced should against tice of law. The court cautions others only pursuant stipulation to a withdraw with interpreting implying our decision as that the way, Bar or an voluntarily State order of court. time an withdraws from practice against any suspen- appropriate should be credited the State Bar and this can set court imposed. Murray sion The facts in both supervise conditions for the or at withdrawal unique, warranting Rivkind were this otherwise observe the least withdrawal. Murray, unusual treatment. See In re 159 Ariz. (1988) (crediting attorney P.2d One, Committee, the 9. On Count the 3-member year suspension imposed one toward based Commission, pan- 8-member and this 3-member two-year, self-imposed suspension, on his unanimously Respondent's el concluded that due, length part, which was to State Bar’s rules, conduct violated the conflict of interest delay instituting proceedings); formal In re rules, governing the rules communication Rivkind, candor the court. (1990) (imposing suspension covering retroactive
75
Hunt,
262,
(1961);
127
P.2d
categories
expenses. Respon-
see
Ariz. at
619
of costs and
jurisdic-
argues
requested
(listing
that the amount
at
cases from numerous
dent
1039
authority
reg-
to
hearing transcripts
recognizing judiciary’s
and
is unreasonable
tions
law);
gener-
practice
are
of
see
charges
duplicative.
certain
and control
ulate
Lee,
Power
Blewett
The
ally
Constitutional
Bar.; 18
Admission
the Courts Over
Objection
Expenses
1.
to Assessment of
of
(1899);
M. Al-
Thomas
Harv.L.Rev. 233-55
that Would Not be Recoverable in a
to
the Courts
pert,
Power
The Inherent
Civil Action
of
An Historical
Regulate the Practice
Law:
of
objection
In his initial
to the State Bar’s
(1983). Be-
525
Analysis, 32 Buff.L.Rev.
expenses, Respondent
statement of costs and
the
judiciary’s authority
regulate
to
the
cause
challenged
regulate
authority
the court’s
to
accepted premise,
practice
widely
of
is a
law
“[tjhere
legal profession, stating
the
is
we,
recent
along
other
that have
courts
provision
no
granting
constitutional
the Su-
issue,
ly
merely
have tended
addressed this
power
the
preme
regulate
legal
Court
to
the
authority
regulate the
pronounce our
any
profession,
longer
and there are no
stat-
source
practice
explaining
of
the
law without
utory provisions giving
power.”
it such
Re-
Lewkowitz,
See, e.g.,
power.
re
70
of
spondent appears to have retreated from this
(1950).
229,
325, 329, 220
231
Ariz.
P.2d
memorandum,
position
reply
conceding
in his
Thus,
the
of our
explanation
a brief
of
source
power
regulate
court has the
authority
power and
of our
is
the extent
legal profession. Respondent
now
appropriate.
(1)
scope
that:
the court exceeded tlie
of its
52(a)(8),
authority
promulgated
it
when
rule
Hunt,
deter
As we stated in
“[t]he
requires
to impose money
court
practice
of
shall
in Arizona
mination who
law
judgment
State Bar’s
and ex-
costs
placed
and under what condition is
function
(2)
penses
disciplined attorney;
on a
state
in this court.” 127
constitution
expenses
assessment of
not otherwise collect-
261-62,
at
Similarly,
5(5),
§
con-
article
is another
to limit courts
government
of
other branches
provision empowering
stitutional
this court to
power.
in
this
the exercise of
discipline attorneys.
admit and
provi-
This
12-109,
that,
§
argues
when it enacted
provides
sion
that this
the “[p]ower
court has
to recover-
legislature limited the State Bar
to
procedural
to make rules relative
all
mat-
in a
only
civil
ing
those costs that are taxable
any
in
The
ters
court.”
admission and sub-
argument.
reject Respondent’s
action. We
sequent
discipline of
are some of
terms,
statute,
inapplicable to
by
The
its
is
procedural
any
the most basic
matters before
Moreover, any attempt
disciplinary actions.
court.
§
disciplin-
interpret
encompass
12-109
occasions,
On
court
numerous
this
has had
ques-
ary actions would raise constitutional
procedural.
to determine
a
is
whether matter
tions.
See,
Fletcher,
187, 191,
e.g.,
Ariz.
State v.
149
(1986).
so,
P.2d
doing
717
870
this
on
§
of AR.S.
12-109
1. Effect
distinguished
has
procedural
court
from sub
(cid:127)
Power Assess
Court’s
law, stating:
stantive
Expenses
Costs and
Procedural, adjective or remedial
law is
argues
§
12-109
portion
prescribes
of the law which
power to
costs and
limits the court’s
assess
enforcing
right
the method
a
or obtain-
of
proceeding
only
a
expenses
disciplinary
in
ing
right.
redress for the
invasion
may
costs
be taxed in
civil
those
law,
hand,
Substantive
the other
is that
part;
provides
Section 12-109
in
action.
creates,
portion of the law which
defines
court,
supreme
by
promulgated
rules
regulates rights.
time,
regulate pleading,
from time
shall
Fletcher,
By shifting
the
of
alternative,
some of
financial burden
In the
ar
disciplinary procedures to those
di-
who are
gues
expenses
that assessment of
outside
costs,
rectly responsible
the
for
we insure the
in
action is
form of
those recoverable
a civil
ability of the State Bar to continue its efforts
punishment, contrary
purpose
to the stated
having
in
area
this
without
ask the State
lawyer discipline.
agree
Respon
with
of
We
lawyer
Bar’s members
Bar’s
purpose
discipline
to further subsidize the
the
of
dent that
disciplinary
protect
punish
lawyer,
efforts.16 Not
is the assess-
but to
the
not to
costs against
public
by
ment of
com-
and deter similar conduct
other
who
Rivkind,
157,
equitable
lawyers. E.g.,
mitted misconduct a more
means of
compels steps further us to take Duplicative Expenses public. Accordingly, pre-condition b. as a reinstatement, require charge's also claims that at an successfully complete a course in ethics for travel Bar counsel’s routine in-state ex- law, pass Multi- college accredited penses, supplies, office and the staff investi- Responsibility Examina- state Professional gator’s are duplicative time $450 tion, complete Professionalism for charged screening and administration. State Bar. by Course offered the Arizona claim, however, sup- is not ported by According evidence. DISPOSITION Expenses Statement of Costs Rosemary State Bar submitted and to B. suspended period of Respondent is for a affidavit, charged Martin’s the amount year. applying for reinstate- one Before screening solely and administration reflects ment, Respondent successfully must com- screening investigat- costs associated with plete a in ethics an accredited course ing disciplinary “general” claims and admin- law, Profes- college pass Multistate istrative costs the State Bar incurred Examination, com- Responsibility sional assignment hearing from the of a case to a Course offered plete the Professionalism through committee the conclusion Bar. shall the Arizona State “general” case. These administrative costs $8,060.52 for the pay also to the State Bar charges things include such adminis- proceedings, and costs and of these expenses counsel, expended by trative time staff bar A in pay to Client the amount restitution assistants, legal secretaries, typists, file $2,258.60. Respondent’s reinstatement after messengers, postage charges, clerks and *28 for in Arizona suspension provided is rule costs, supplies, telephone normal office Supreme Court. Rules normally other factors attributed office specifically overhead. Ms. Martin averred MOELLER, V.C.J., concurs. investigator’s expenses that travel and staff Justice, ZLAKET, dissenting. times were not included in the amount charged screening for and administration. majority’s I am to concur unable Expenses Statement of The Costs sub- Moreover, matter. because resolution of this supplies charges pur- mitted reflects for significant extend I am reluctant specifically chased for this case. there- We my will be length opinion, of this remarks fore find that claim that he is brief. expenses being charged twice for the same is acknowledge” Respondent’s “failure unfounded. conduct, finding wrongful his a nature of aggravating by majority as an affirmed
CONCLUSION factor, large originated in appears to have aggressive defense advanced part from the agree with Commission clear today’s opinion I fear that by attorneys. convincing supports evidence find- facing message One, to those ings sends an erroneous that as to Count violat- the disciplinary process—that they if altogether, dare to which is what I believe should challenge them, charges against the con- have been done. sequences may be they more severe than if The method here appear does not to be simply confess wrongdoing pray for mer- different from that utilized the com- cy. There something demoralizing and committee, mission and the both of which message, destructive in such a something presumably weighed aggra- found and these very violates the spirit upon which our vating mitigating against factors one an- legal system Here, premised. although other. Perhaps explains why, despite respondent’s weak, some of arguments are I its having claim of weight eliminated the do not find them to be spurious or contemp- given particular factor, aggravating
tuous. Neither Ido believe he should be majority finds no cause to consider a penalized taking aggressive an stance modification discipline. of the recommended committee, commission, before the or this court. Respondent had a conflict of interest recognize he either failed to or chose to
Respondent’s failure to return the execut-
ignore. His conduct
improper,
ed
and I do
judgment,
satisfaction of
exceeding-
while
ly
dispute
poor practice,
disciplined.
that he should be
hardly
the heinous offense
my
however,
judgment,
portrayed by
suspension
a
majority.
of six
The finding that
day,18
months and one
“prejudicial
super-
conduct was
followed
to the adminis-
justice”
probationary
period
tration
vised
mandatory
strikes me as a considera-
participation
ble
in the
overstatement.
state bar’s law office
significant
It is also
management
(LOMAP),
program
neither the
assistance
hearing committee nor the disci-
ought
plinary
to be
I
commission
sufficient.
would also remand
made such
finding.
this matter to the State Bar for a determina-
agree
I
that the
respondent’s
use of
“sub-
did,
fact,
tion
respondent
as to whether
experience
stantial
practice
in the
of law” as
voluntarily remove himself
practice
from the
aggravating
inappropriate
factor was
so,
of law as he
If
claims.
I would be
here.17
I
respectfully
however,
disagree,
give
inclined to
him credit
for that
time
majority’s
with the
gives
claim that
it
no
against any sanction imposed.
purpose
weight
factor,
to this
and submit instead that
of discipline, or so
say,
protect
we like to
is to
its analysis has quite the opposite effect.
public
rather than to punish
lawyer.19
prior
had no
disciplinary record Nothing in the
suggests
respon-
record
many years
over
practice,
which should
presents
continuing
dent
threat
to the wel-
Mulhall,
In re
weigh
in his favor.
clients,
justice
fare of his
system,
(1989).
768 P.2d using
But in
public
Thus,
general.
voluntary
credit mitigating
effect of
discipline-free
those
appropriate
removal would be
here.
years to “offset” the
practice”
“substantial
aggravating factor,
majority
effectively
note,
On a
majority
final
I believe the
equal weight
accords
to both.
ap-
Such an
respondent’s legal argument
misunderstands
proach makes little sense to me.
regarding
The net
authority.
this court’s
IAs
read
effect
is to cancel
mitigation
briefs,
out whatever
questions
right
he
our
to assess
respondent’s “unblemished” disciplinary
expenses
rec-
costs and
disciplinary proceed-
*29
might
ord
otherwise
provided,
have
leaving
ings. He does
challenge
general
our
him with no credit
for it at all.
power
This is
govern
the practice of law or to
clearly not the same
eliminating
as
regulate
the “sub-
legal
profession in this state.
experience”
stantial
Thus,
factor from
equation
agree
while I
majority’s
with the
reso-
application
"aggravator”
544,
17. The
always
Coffey,
19. In re
171 Ariz.
lution “power” sion of our unwarranted. reasons, foregoing respectfully I For the dissent. Woods, Atty. by Paul J. Gen.
Grant
McMurdie,
Counsel,
Appeals
Criminal
Chief
Golden,
Atty.
S.
Asst.
Section and Robert
Supreme Court of determine whether defendant’s We must En Banc. prior felony for theft and two convictions property be treat- trafficking in stolen should June purposes of sentence
ed as one conviction Specifically, we must decide enhancement. occurred on whether these offenses 13-604(H). § “same occasion” under AR.S. Const, jurisdiction pursuant to Ariz. We have 5(3), 12-120.24, § rule § art. AR.S. 31.19, of Criminal Procedure. Arizona Rules History Procedural Facts and (defendant) was Sheppard Gene Marvin felony, kidnapping, class convicted assault, felony. a class 3 attempted sexual leading the con- The factual circumstances Sheppard, v. forth in State victions are set (App.1993). P.2d 1120 convictions, had defendant Before these trafficking in of theft and been convicted 3 felonies. The property, stolen both class trafficking resulted theft convictions an incident undercover particular model of police officer “ordered” a Defen- from defendant. Lincoln Continental vehicle and requested dant stole the then police officer later delivered it day. *30 judge objections, the trial
Over defendant’s both the sentences for enhanced defendant’s con- attempted assault kidnapping and sexual 13-604(D), an en- § Under AR.S. victions.